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Andhra Pradesh High Court
Judges : BASI REDDI
Noor Mohd.Khan, by Power of Attorney - Appellant
Versus
Deputy Custodian, Evacuee Property, Nalgonda - Respondent
Decided On : 08-29-60
EVACUEE PROPERTY - ADMINISTRATION OF EVACUEE PROPERTY ACT, 1950 - SECTION 7-A - PROPERTY NOT TO BE DECLARED EVACUEE PROPERTY ON OR AFTER 7TH MAY, 1954 - NOTIFICATION ISSUED DECLARING PROPERTY AS EVACUEE PROPERTY AFTER 7TH MAY, 1954 - VALIDITY - PROPERTY NOT FALLING WITHIN EXCEPTIONS - NOTIFICATION QUASHED.
Fact of the Case:
The petitioner challenged the Notification issued by the Deputy Custodian, Evacuee Property, declaring three residential houses belonging to his daughter-in-law, Srimathi Asima Khatoon, as evacuee property. Srimathi Asima Khatoon had migrated to Pakistan in 1948 and returned to India in 1953 with her children. They left India again in 1958. During their stay in India, the petitioner created a trust in respect of the houses in question, naming Srimathi Asima Khatoon and her children as beneficiaries. The Deputy Custodian issued the impugned Notification on September 27, 1958.
Finding of the Court:
The court held that the Notification was issued in contravention of the peremptory provisions of section 7-A of the Administration of Evacuee Property Act, 1950, and was therefore clearly without jurisdiction. The court noted that section 7-A prohibited the declaration of property as evacuee property on or after 7th May, 1954, with certain exceptions. The court found that the property in question did not fall within any of the exceptions and that no valid notice under section 7 of the Act was issued to Srimathi Asima Khatoon after the trust was created for her benefit on June 15, 1955.
Issues: Whether the Notification issued by the Deputy Custodian, Evacuee Property, declaring the property as evacuee property was valid.
Ratio Decidendi: The court held that the Notification was invalid because it was issued after the 7th May, 1954, and the property in question did not fall within any of the exceptions provided in section 7-A of the Administration of Evacuee Property Act, 1950. The court also noted that no valid notice under section 7 of the Act was issued to Srimathi Asima Khatoon after the trust was created for her benefit on June 15, 1955.
Final Decision: The court allowed the writ petition, quashed the impugned Notification, and awarded costs to the petitioner.
( 2 ) THE facts relevant for the purpose of this writ petition may be briefly stated : in March, 1948, Srimathi Asima Khatoon, the daughter-in-law of the petitioner, migrated to Pakistan taking her three minor children with her. When she left India she had no properties here. On December 11, 1953, she returned to India with her children on a Pakistani passport. They were granted long term vise to enable them to obtain Indian citizenship. However, their efforts to obtain Indian citizenship having failed, they left for Pakistan again on September 8, 1958, as their vise period was over. Thus Srimathi Asima Khatoon and her children resided in India from December 12, 1953 to September 8, 1958.
( 3 ) DURING their stay in India, on June 15, 1955, the petitioner created a trust in respect of the three residential houses in question naming Srimathi Asima Khatoon and her children as the beneficiaries. By the deed of trust, Sri P. Venkataranga Rao, advocate, Nalgonda, was appointed as the trustee. One of the clauses in the said trust deed, which is material for the present purpose, provided :"as soon as the said beneficiaries cease to reside in India for any reason, the trustee shall transfer the trust properties to the transferor. "so that under the terms of the trust seed, as soon as Srimathi Asima Khatoon and her children left India, the petitioner became entitled to the trust properties.
( 4 ) ON September 27, 1958, the Deputy Custodian of Evacuee Property, Nalgonda, issued the impugned Notification declaring the residential houses in question which according to the notification were the property of Srimathi Asima Khatoon as evacuee property. In doing so, the Deputy Custodian obviously overlooked the provisions of section 7-A, which was added by the Administration of Evacuee Property (Amendment) Act (XLII of 1954) with the object of abrogating the evacuee property law except in cases where the cause of action arose before the 7th May, 1954. Section 7-A runs thus :"7-A. Property not to be declared evacuee property on or after 7th May, 1954.-Notwithstanding anything contained in this Act, no property shall be declared to be evacuee property on or after the 7th day of May, 1954 : provided that nothing contained in this section shall apply to- (a) any property in respect of which proceedngs are pending on the 7th day of May, 1954, for declaring such property to be evacuee property ; and (b) the property of any person who on account of the setting up of Dominions of India and pakistan or on account of civil disturbances or the fear of such disturbances had left on or after the 1st day of March, 1947, any place now forming part of India, and who on the 7th day of May, 1954, was resident of Pakistan : provided further that no notice under section 7 for declaring any property to be evacuee property with reference to clause (b) of the preceding proviso shall be issued after the expiry of six months from the commencement of the administration of Evacuee Property (Amendment) Act, 1954. " (It may be noted that this Act was passed on 8th October, 1954):"explanation I.-A person shall be deemed to have been resident in Pakistan on the 7th day of may, 1954, within the meaning of clause (b) of the first proviso, if he was ordinarily residing in Pakistan before that date, notwithstanding that he was temporarily absent from Pakistan on that date. Explanation II.-A person who had l
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